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Condemned to die, but not to wait

On Tuesday, January 21, 2014, a three-judge bench of India’s Supreme Court reaffirmed the value in due process of law, even in its application to those whom we as a society have shunned, by commuting
to life imprisonment the sentences of 15 convicts on the death row. The commutations, in Shatrughan Chauhan v. Union of India , were primarily ordered on grounds of delays by the President in disposing of petitions filed by felons praying for mercy. The Court held that to execute a person who has been kept on death row for years on end with no answer to his or her plea for clemency, is an act of torture that violates the prisoner’s fundamental right to life. Such acts of clemency would have hardly occasioned in most other civilised societies where the death penalty has been abolished. However, given that the cry for capital punishment keeps cropping up in India like “some unkillable movie gorgon,” to borrow a phrase once used by Nicholas Jenkins in The New Yorker , the decision is a welcome reminder of the constitutional values that we most cherish.
Assimilation of settled law
The legal issue at stake in Chauhan was simple: are the powers of pardon vested in the President and the Governors under Articles 72 and 161 of the Constitution amenable to judicial review? The Court held that these powers carried with them a concomitant constitutional duty for the authorities exercising the powers to conform to due process. Therefore, in exceptional cases, where the authority concerned may have abdicated its responsibility in acting contrary to requirements of due process, its decisions would be amenable to judicial scrutiny.
In Chauhan , the Court was confronted with instances where mercy petitions filed before the President and various Governors had been kept in abeyance for several years, with no answer forthcoming from the authorities. There were also other cases where the convict in question had developed serious mental illness during the period of his or her incarceration, raising substantial doubts over the fitness of the prisoner to be subjected to an execution. The Court ruled that such delay or mental illness constituted “supervening circumstances,” requiring the President or the Governors to exercise their constitutional duty in granting pardon. When they fail to do so, as was the case with 15 convicts on death row, it becomes incumbent upon the Court to intervene in the interests of preserving the due process of law.
In many ways, this conclusion in Chauhan is not particularly novel; it is rather an assimilation and reaffirmation of settled law, specifically as laid down by the Supreme Court previously in T.V. Vatheeswaran v. State of Tamil Nadu (1983) and Triveniben v. State of Gujarat . But Chauhanmakes the important point that an inordinate and inexplicable delay in execution would preclude carrying out the sentence even in cases where the convict in question had committed an offence of terrorism. In so deciding, the Court has overruled its own recent decision in Devender Singh Bhullar v. State of NCT Delhi . In Bhullar , decided in May 2013, a two-judge bench had ruled that a delay in disposing of a mercy petition was, by itself, insufficient ground for commuting the sentence of those convicted to death under anti-terrorism statutes. In correcting this anomaly, Chauhan reiterates a long-standing constitutional value: the Constitution demands that the state treats all those subject to its powers as having equal status; when there is no constitutional basis for differentiating between convicts found guilty of offences such as murder and convicts found guilty of terrorism offences, any delay in execution is to be treated equally, as a violation of due process, irrespective of the offence committed.
At the core of the Court’s finding is the now well-established notion that to keep a death row convict inordinately waiting for his or her turn to enter the gallows is an act of torture — in this case, an act, virtually, of state-sanctioned torture. Take, for example, Praveen Kumar, 55, one of the writ petitioners before the Supreme Court. He had been convicted of a quadruple murder and had been sentenced to death in February 2002. In October the following year, the Supreme Court confirmed his sentence. Soon after the sentence had reached finality, Kumar petitioned the President seeking mercy on the grounds that he had been subjected to solitary confinement ever since the trial court had found him guilty. In December 2003, the President’s office forwarded Kumar’s request to the State Governor concerned for consideration under Article 161. The Governor, having reviewed the various judgments of the courts, declined to exercise his power by a decision dated September 30, 2004, following which the President was once again seized of the petition. It ultimately took the President until March 26, 2013 to decide — and dismiss — the plea for mercy. As a result, Kumar, who had been sentenced to death in February 2002, had spent 11 years and 10 months in custody at the time of filing his writ petition. Capital punishment, in most civilized societies is regarded — rightly — as an abomination; but to keep a prisoner sentenced to death for an additional period of punishment is neither envisaged by law nor is it protected by the Constitution. As the Court rightly held in Chauhan , the right to life and personal liberty guaranteed by Article 21 includes within it a right to be treated with a certain dignity, even if you are a convict on the death row. Article 21 — which now by interpretive design recognises a right to due process — is applicable not merely to you, me and every other average citizen, but also to those condemned to the gallows. Any inordinate, unexplained delay in determining the merits of a mercy petition filed by a convict on the death row would be an infraction of that right. It is easy to wonder why the most brutal of men and women deserve the protection of the law; but when due process is disregarded for monstrous criminals, it also becomes simpler to disregard it for the rest of us.
Internal conflict
The decision in Chauhan , while a timely reminder of the importance of preserving our most cherished ideals, however also reveals a glaring internal conflict in the Court’s approach to civil rights jurisprudence, particularly in its application of comparative constitutional law. It seems, as the law scholar Nick Robinson has previously argued, there are many Supreme Courts of India. This is most evident when the approach in Chauhan is compared to the decisions in Bhullar and more recently inSuresh Kumar Koushal v. Naz Foundation , which concerned the criminalisation of homosexual acts. In Chauhan , the Court was visibly receptive to protecting the human rights, even of condemned prisoners (including convicted terrorists), and considered foreign legal precedent with an open mind. In fact, the Court went as far as to find that decisions of the United Kingdom’s Privy Council have received “the same respectful consideration” as the decisions of the Indian Supreme Court. In contrast, in Bhullar , the Court spoke deprecatingly of the “bandwagon” which espouses the cause of terrorists and raises the “bogey of human rights.” And in Koushal , the Court similarly chastised the Delhi High Court for extensively relying upon “the judgments of other jurisdictions” in its “anxiety to protect the so-called rights of LGBT persons.”
This fractured and vacillating approach of the Supreme Court is of grave concern, especially given that it affects the most crucial aspect of its judicial function: the protection of our fundamental rights. As the highest constitutional court of the country, it is imperative that the Court adopts consistent practice in its adjudicating; one way to achieve this is to ensure that important constitutional questions are settled by a bench of no less than five judges of the Supreme Court. For now, however, it appears that we must make the best of what appears to be a one step forward, two steps back approach of the Supreme Court.
(Suhrith Parthasarathy and Goutham Shivshankar are advocates in the Madras High Court.)
At the core of the Supreme Court’s finding is the now well-established notion that to keep a death row convict inordinately waiting for his or her turn to enter the gallows is an act of torture — in this case, an act of
state-sanctioned torture

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